Wednesday, 2 May 1990
Dáil Éireann Debate
Mr. J. Mitchell: Before Private Members' time I had asked the Minister for Labour whether there was a definition of the phrase “to attend at that place” and he informed us there was no such definition. In the absence of a clear definition or an undertaking by the Minister that he is prepared to introduce one on Report Stage, I must press my amendment. As I said on Second Stage, the purpose of the Bill is to close off many of the loopholes and gaps in industrial relations legislation during a period of industrial peace, away from the heat of battle. Unfortunately too many opportunities are being lost and too many gaps  are being left in the legislation. We cannot expect this industrial peace to last forever. It is quite likely difficulties will arise in the future when expectations begin to rise once more and as other pressures build up. Unless the Minister is prepared to accept some amendments, including this one, too many gaps will be left in the legislation with the result that very little of a lasting nature will have been gained during this period of industrial peace.
I regret the Minister has not been more forthcoming on this amendment. I ask him again to consider accepting this amendment, which is very clear, or at the very least, to bring in an amendment on Report Stage along these lines or at least defining more clearly the phrase “to attend at that place”.
Mr. Bell: I do not disagree with all of what Deputy Mitchell said. However, I do not think this amendment would have the desired effect for many reasons. Given the wording it would be virtually impossible to apply the amendment to picketing arrangements. Normally a trade union employ a picket in the most effective way within the law. It would be impossible to word a Bill of this nature to cover every eventuality, including a picket on a shopping centre. At the best of times it is difficult to employ a picket in an effective way at such a place for many reasons.
I am very familiar with the docks situation because I am a harbour commissioner appointed by Deputy Mitchell when he was Minister — I thank him for that. In the case of Drogheda docks, of which I know every inch, it would be virtually impossible to picket the entire area given the number of entrances and exits. The most effective way for dockers to win a strike would be to ensure that no one loads or unloads a ship. This normally would be the main objective. Therefore pickets in a docks area would have to be moveable. As we can see it is simply not possible for us to stipulate that a picket be located at a certain location.
Before the adjournment reference was  made to Dublin Airport. I can recall many disputes in Dublin Airport and in most cases the people involved placed their pickets on the main road. Their objective was to stop their own members reporting for work and to halt the operation in which they were involved. That was all they could achieve. They were not in a position to stop people in cars going to and from the airport or boarding planes operated by other airlines. While the sentiments expressed may be all right, I do not think it is a very practical amendment and for that reason I could not support it.
Mr. Rabbitte: I think the thrust of Deputy Mitchell's remarks is wrong in terms of regretting the Minister not availing of this opportunity to tighten up the law on picketing. As was pointed out before the adjournment if we take all of section 11 together this constitutes a major change in the law on picketing, which has been in place since 1906 and I traced some of that history. No doubt when we come to deal with the relevant sections we will all express a view on the wisdom of the Minister in proposing these far reaching restrictions. I think Deputy Mitchell is wrong in regretting the Minister not availing of this opportunity to tighten up the law in this first major revamp of industrial relations law in a very long time.
The Deputy's amendment is more restrictive and, as Deputy Bell said, a trade union will seek to employ a picket where it is most likely to be effective. It is unwise to try to define, as Deputy Mitchell seeks to do, where a picket should be placed. I do not hold the same view about amendment No. 22 in his name which I will be happy to support but in this case I ask him to have a rethink and let us proceed with the next amendment.
Mr. J. Mitchell: I am not surprised by what Deputy Bell and Deputy Rabbitte have said. I think they misunderstand the purpose of the Bill. They have said that the intention behind this amendment to use Deputy Rabbitte's expression, is to  tighten up the law. I never used that expression but what I did say was that we should try to close off the gaps and loopholes. It is my view that this Bill will not apply to unions affiliated to the Irish Congress of Trade Unions but rather to unions who are not so affiliated. This Bill will not be as effective as the internal procedures and practices of Congress.
Mr. J. Mitchell: It will, if it remains unamended. Amendments have been tabled which could change that. For whom are we trying to legislate here? We are trying to legislate for the non-Congress union but we are missing the boat on each section. In doing so there will be the possibility that a majority of unions could be stampeded by a minority of unions and a majority of workers could be stampeded by a minority of workers. I could give many classic examples of this. At one stage we nearly lost a State company with 2,100 jobs through the actions of one non-Congress union at Dublin port.
There is no need for such provision when it comes to Congress unions. If this Bill is not enacted the situation could be worsened. Internal Congress procedures and practices which are very effective could be undermined. These deserve to be not undermined but reinforced and that is the purpose of these amendments. Nobody would want a situation where unions, whether they are in Congress or not, would have no choice but to picket at a place where other employers or employees would be affected maybe with the result of ruining those businesses. That is very close to what happened when I was Minister for  Labour. Extraordinarily, Deputy Rabbitte was the branch officer of the ITGWU as it then was dealing with the B & I workers' point of view; Deputy Quinn was the Minister for Labour and I was the Minister for Transport. I do not think Deputy Bell was around.
Mr. J. Mitchell: I am sorry to leave you out of this, a Cheann Comhairle. Both Deputies Bell and Rabbitte have an acknowledged first-hand experience and expertise in this area but I would ask them to at least reflect on the purpose and if the wording of my amendment can be improved upon I would be very willing to consider changes to it for Report Stage. We are, however, in danger of leaving open all the loopholes we are supposed to be addressing in this Bill. We cannot force unions to be in Congress but we can arrange things in such a way as to make it highly desirable for unions to be in Congress. Then Congress is master of its own house and the Congress procedures and rules can be recognised and not affected by law. That is the way I would like to see it. Under our Constitution we cannot force unions to belong to Congress.
Mr. J. Mitchell: They would not want it, but so long as there are unions of a significant size about who do not want to belong to Congress and so long as there is the possibility of breakaways in the future we will have a problem with no laid down procedures and practices accepted by all unions whether they are in Congress or not. There will always be the unions who are “upping the ante”, that will be more militant so as to poach members, etc. as we have had in the past.  It would be naive to think that will not recur in the future.
To return to the amendment, I believe that leaving the present phrasing, “to attend at, or where that is not practicable at the approaches to,” in the Bill is asking for trouble. It is far too imprecise. What we should be trying to do is to make it more precise. I would ask the Minister to look again at this matter for Report Stage to see if he can come up with a wording that meets my concern about this Bill.
Mr. Bell: Let me give one example with which even the Ceann Comhairle will be familiar. A shoe company in Drogheda was located in the yard of the then Irish Oil and Cake Mills and there was a common entrance to the two units. I had occasion to sanction an official dispute there as had the other union, the Irish Transport Union. The picket was placed by the Irish Shoe and Leather Workers' Union outside the entrance but we did not expect the workers in the Irish Oil and Cake Mills to stay out of work. It would not have made any difference whether it was a Congress union or not. We would not put a picket up to stop people from going in to another company that was not involved in the dispute. The name of the company and the name of the union were displayed on the banner.
Mr. J. Mitchell: It nearly closed down the B & I and it cost a few million pounds for one week's stoppage and diverted business to Larne in the process. It has happened on a number of occasions in Dublin Port over the past 20 years and not only did it affect others but it diverted supplies, passengers and freight.
Mr. J. Mitchell: It might be said that extreme cases make bad law but in my view it is one of the loopholes we should be trying to rectify now that there is a pause in industrial strife. We should take advantage of this because many things are now possible that would improve the whole industrial relations climate from the point of view both of workers and employers and that is not possible in the heat of the battle. That is what we should be trying to do and that is what I would like us to do in this amendment. I ask the Minister to consider looking at it to see if he can be more precise about the meaning of the phrases “to attend at” and “at the approaches to”.
Minister for Labour (Mr. B. Ahern): I went through this in some detail before Private Members' time and I said then I understood Deputy Mitchell's concern. The Deputy has explained in great detail about the possibility of picketing multi-employment complexes. I share his concern but I would like again to emphasise that the wording in the Bill was devised with this type of situation in mind. The fear that the use of the words “at the approaches to” will lead to picketing at the entrance and approaches to multi-employment complexes ignores the point I made. The phrase “to attend at” is very definite, and where that is not practicable, it is to be somewhere else in the immediate location. The section covers all unions whether or not they are members of the ICTU. We are dealing with primary picketing, and everyone is subject to the law.
Deputy Mitchell said it would be enough to leave it all to Congress rules because they would cover everything. That is just not so. That is not the point. That is why we have had the employers' organisations demanding that we should not have secondary picketing of any type whatsoever. They could, if they had a voice in here, quote cases where that  would make good sense. I did not go down that road of just banning secondary picketing forthwith. Some Members of the House received submissions from them in that regard but that is not the way I sought to go.
There are only two unions effectively outside Congress. In their own way they are well organised. Other well organised unions who had been outside Congress are now within Congress. I do not want to dwell on the distinction between Congress and non-Congress unions because by and large the procedures of all the unions are responsible. It is not up to me to be critical of them in any way. The law covers all unions once they have a negotiating licence. I do not want in any way to be frivolous with Deputy Mitchell but if I was trying to cover the ports I might have to be specific and say, at the particular crossroads of Mayor Street and New Wapping Street, to avoid the B & I port, and if I was referring to the airport I would have to say, at the junction to Collinstown Cross, you cannot do that in legislation. It would be quite clear to someone reading the legislation that the words “at the approaches to” did not  mean some place that was not in the district and it is clear that it means somewhere in the immediate vicinity. I understand that Deputy Mitchell spoke on this on Second Stage. I know that he speaks from experience and I understand he had to deal with the hot potatoes of the day in the port. The advice from the trade unions and employers and the practitioners on both sides is that while this may not cover every single definition, which is impossible to do, it is comprehensive enough to cover the position.
I ask Deputy Mitchell to accept this point. I cannot in any way stop him from bringing forward an amendment and if he thinks there is a tighter amendment, that is his prerogative. We honestly do not believe there is and we think we have covered the matter as best we can. We have had a long debate on it today and I think we have covered the position.
Coughlan, Mary Theresa.
de Valera, Síle. McEllistrim, Tom.
Morley, P. J.
Nolan, M. J.
Noonan, Michael J.
O'Toole, Martin Joe.
Fitzgerald, Liam Joseph.
Gallagher, Pat the Cope.
Kitt, Michael P.
McDaid, Jim. Power, Seán.
Wilson, John P.
Belton, Louis J.
Browne, John (Carlow-Kilkenny).
Enright, Thomas W.
Farrelly, John V.
Sheehan, Patrick J.
Mr. B. Ahern: The substance of these amendments is one of the issues which the Irish Congress of Trade Unions raised with me. I have obtained legal advice to the effect that it is not necessary to refer specifically to the past tense. The situation the Deputies are referring to is already covered by the wording used, which is in the present tense. It is a matter of looking at a case objectively and asking whether it is reasonable to regard a particular location as a place of business of the employer involved in the dispute. I do not think it is necessary to have an amendment along the lines proposed as  it would convey the impression that it was quite legitimate to picket a location where an employer had carried on business in the past. In the event, the wording as it stands is adequate and the amendments are not necessary for the reasons I have stated.
Mr. Bell: We are taking amendments Nos. 22 and 23 together. As the Minister is probably aware the ICTU have had some reservations about the wording of this section. It was felt that by including the words as contained in both Deputy Mitchell's amendment and that of Deputies O'Sullivan and Rabbitte, this would effectively make that situation more secure. Perhaps the Minister would have a look at it to see if it is possible to tighten up on that on Report Stage.
Mr. J. Mitchell: Can the Minister elaborate on what he said earlier? What about the employer who moves business and seeks to dispose of the property, where the new owners then seek to injunct a picket at that employment? Is this issue provided for in the section? It is not clear to me that it is provided for.
Mr. B. Ahern: In a change of ownership the picket placed on the premises of a new employer, even under the present situation, would most likely be injuncted on the basis that it was not in furtherance of a trade dispute because the new employer would not be in a position to influence the outcome of the dispute with the previous owner. This is what happened in the Bayzana case. Even if the amendment was made it would not cater for the situation for which the Deputy is trying to provide.
Mr. J. Mitchell: Is that correct? A firm could close down in one place, move elsewhere, sell that property and leave the picketers high and dry. That is precisely the situation I envisage arising and it is one which I think would be grossly unfair to a workforce. The reason I included  specifically the words “at the commencement of the dispute” in my amendment was to prevent a situation arising whereby an employer ups and goes and sells the property and where someone else tries to seek an injunction because he is not the employer and is not in dispute with those workers. To my astonishment the Minister confirms that that is the situation and that that can happen. Surely my amendment would prevent that happening?
Mr. Rabbitte: These are very reasonable amendments. The amendment in the names of Deputy O'Sullivan and myself is somewhat neater than that of Deputy Mitchell. I agree with the thrust of what Deputy Mitchell is seeking to do. I wonder if the phrase “after the commencement of the dispute” is more limiting than the phrase “or normally worked or carried on business”. It is absolutely essential that it is not only lawful to conduct peaceful picketing where the employer works or carries on business but if, for whatever reason, he has left— there may be reasons other than liquidation or going out of business — he may transfer his business to a different location and somebody may acquire this business in a transfer of undertaking. We had that discussion at the early stage in terms of definitions when we talked about “or who acquires an undertaking for which one or more workers work or have worked”. I do not want to make a meal out of this. We all understand what is at issue. I cannot see how one could reasonably restrict people to the present tense, to people who work in a business that is operating at present. A liquidation or a similar situation must be provided for.
Mr. B. Ahern: We have obtained legal advice to the effect that it is not necessary to refer to the past tense and that the situation which the Deputy is endeavouring to catch is already covered by the wording used, which is in the historic  present tense. I answered the other question which Deputy Mitchell raised. A picket must have an objective and must be in furtherance of a dispute.
Mr. Rabbitte: I would like to make a similar point but I do not want to delay the business. I would like to have an opportunity to study how precisely the Minister claims that the situation we talked about is provided for and, if so, I would be satisfied with that. If not, I wish to indicate that we will be back to it on Report Stage.
An Leas-Cheann Comhairle: Amendments Nos. 26 and 27 are related and amendment No. 28 is an alternative. It is proposed, therefore, to take amendments Nos. 26, 27 and 28 together for debate. Is that agreed? Agreed.
The net point is the difference between the subjective test and the objective test. The Minister's wording is more onerous  in so far as it requires the people so picketing to have a reasonable belief that the second employer is assisting the undermining of the dispute. It ought to be sufficient for the picketers concerned to be able to rely on an argument that those so attending have an honest belief that that is the case. It is a less onerous proof than is required in the objective test.
One cannot deal with amendments Nos. 26 and 27 without referring to what many people would say is the raison d'etre of the Bill. There has been considerable discussion on section 9 (2), section 11 (2) and about industrial action, which are the three most important elements of this Bill.
Section 11, which I had hoped we would get to earlier, is central to the entire purpose of the Bill and amounts to a very serious restriction on trade union rights and changes entirely the balance that has obtained in this country up to now. I voiced the opinion, with all due respect, to people outside this House who one might have expected to be more vocal on this, that they did not readily understand at the time, they were so pleased that we did not seem to be going down the Thatcher-Tebbit road that they were more moderate in their response. When you study this you find it is very restrictive indeed. It is a lawyer's paradise inasmuch it invites court action. The phrasing adopted by the Minister that pickets may attend at the place of employment of the secondary employer only if they believe he is acting “in a way calculated to frustrate the strike or other industrial action by directly assisting their employer who is a party to the trade dispute,” is seriously regressive from the point of view of the trade union movement.
I instanced a number of cases on Second Stage which would be put outside the provisions of this section. For example, in the case of a post office dispute, if a company of private couriers are brought in you could not say they are  directly assisting An Post but they are certainly undermining the strike and their action is calculated to frustrate the strike. They are interested only in getting a share of the action, they are not interested in helping An Post. There is any number of examples one can postulate where some other employer comes in, not for the purpose of assisting the first employer, but for the purpose merely of getting a share of the action, and the net effect of it is to undermine the dispute.
I submitted amendment No. 27 and will withdraw it in favour of the latest wording which, I suggest modestly, is very good. It is that where the workers attending, and so on, believe the employer is acting “in such manner as to have the effect of frustrating the strike by either directly or indirectly assisting”. It is not merely “directly assisting”, but what I omitted to deal with on Second Stage because I did not see the point at the time was this word “calculated”. Who is supposed to be able to say the second employer calculated to frustrate the strike? The employer might well have been saying he was getting on with his own business. He might have the effect of undermining and frustrating the strike but he did not set out to do so. It was not calculated to do so. Therefore, that again invites litigation. Much more important, it will rule out the protection of the legislation in many situations that will arise. It does not share the harsh class language of the Tebbit era but in a far more subtle way it imposes similar restrictions on the trade union movement.
In summary, on amendments Nos. 26 and 27 I am saying that where section 11 (2) provides that these pickets may attend “if, but only if, it is reasonable for those who are so attending to believe at the commencement of their attendance and throughout” that the employer has acted in a way calculated to frustrate the strike, I would prefer to see the less onerous term in law which is that they hold an honest belief. How are the average pickets to determine that it is a reasonable  belief in the sense that they will act on their instinct? It is very often difficult to prove that another employer is undermining the dispute. There are many examples of that which we can go into if there is a wish to do so. In the case now being advanced by the Labour Party in Britain their spokesman Tony Blair has come up with the phrase “where there is an honest belief.” That makes it better.
The most important single amendment to this Bill is that this calculated attempt by the employer to undermine the strike etc. should be changed to provide that the secondary employer is acting in such manner as to have the effect of frustrating the strike by either directly or indirectly assisting the first employer.
Mr. Bell: I must agree with my colleague, Deputy Rabbitte, on this. This is one of the most fundamental and important sections of the whole Bill; it is the meat of the Bill. I have grave reservations about the wording of this section. I came in here eight years ago after nearly 30 years in business when the situation in industry and services was different. It has changed rapidly especially in the last ten years. Companies used to employ transport and maintenance people of their own. Now hackers are transporting goods. Work is subcontracted out to engineering companies which was normally done by fitters and electricians. Services that were formerly provided by the companies themselves in the industries are being subcontracted out, particularly in the last couple of years. Companies no longer employ their own security men. A typical example was here in the Dáil when a dispute took place in relation to our own security staff here. If another security company had been brought in here to carry out the security duties there would be no sense in talking about calculation. It would be a clear attempt to break the strike. The trend in the section suggests an attempt — I am not saying deliberately — to safeguard  the interests of the employer rather than those of the workers in the strike.
I am very worried about the wording, and I appeal to the Minister in the strongest way possible to accept at least the spirit of the amendment set down to this section. Substantial subcontracting is developing now within industry and the people concerned would have to try to safeguard their own interests because they would not be directly involved within the company in dispute with the men. The unions have difficulty enough at the moment coping with that from an industrial relations point of view. If we use the words in the section we will be adding further confusion and will only succeed in having an enormous number of strikes finishing up in our courts. As a trade union official the one thing I dreaded was getting legal people involved in disputes. In such cases the only winners were the legal people. Certainly, those on strike did not win. In fact, even employers did not win. I agree with Deputy Rabbitte that the Minister should have a serious look at this. If he does not change the provision the Bill will not be worth the paper it is written on.
Mr. B. Ahern: As the Deputy stated, this is an important section. I should like to put the background to it and my views on the section on the record. Subsection (2) deals with secondary picketing and has three main aims: to clarify the existing legal position so that the law is once again a guide for conduct, to regulate secondary picketing more closely and to define secondary picketing in clearly understood industrial relations terms.
The precise legal position in regard to secondary picketing is unclear but is generally thought to be as set out in the case of Ellis v. Wright (1978) where it was held that for a picket to be lawful there must be a “clearly discernible connection between the premises picketed and the dispute in the sense that the employer or workman affected by the  picket is directly connected with the dispute”. This interpretation limits the extent of the protection given to picketing in section 2 (1) of the Act of 1906, but is still vague enough to allow for considerable confusion as to what constitutes legal secondary picketing in particular cases. This is especially so in proceedings for interim and interlocutory injunctions. The danger with this lack of clarity is that the law will fall into disrepute and no longer act as a guide to conduct. Therefore, the clarification provided by this subsection is extremely important for industrial relations practice.
Another aim of the subsection is to regulate secondary picketing more closely and not to extend it. The broad “clearly discernible connection” test of case law will be replaced by a more precise statutory statement on lawful secondary picketing. The subsection provides that secondary picketing will be lawful if, but only if, it is reasonable for the picketers to believe that the second employer has acted in a way calculated to frustrate the strike or other industrial action by directly assisting their employer who is a party to the trade dispute. Merely filling a gap in the market left by a strike-bound employer will not give rise to lawful secondary picketing. The second employer must actively seek to frustrate the strike by direct assistance to the employer in dispute; for example, by filling orders on behalf of the first employer or by providing services to the first employer's customers on behalf of the first employer.
The subsection also changes the basis on which the connection between the first employer and the second employer is judged in secondary picketing, from a mixed company law/industrial relations basis to a straight industrial relations basis. The present test can give rise to complicated questions of company structure such as who controls the company and whether one company is legally related to another in such a way as to be  able to bring pressure to bear on the first company to resolve the dispute. The legal relationship between companies, especially in large groups of companies, will not be obvious to picketers or strike organisers. However, under this subsection the picketers will have a simpler question to answer, more directly related to their industrial relations experience, “Is it reasonable to believe that the second employer is acting to frustrate the strike?” The law will thus become a better guide to conduct with workers having a clearer idea of what is and is not lawful in a particular dispute.
In a court hearing an objective test would apply to the reasonableness of the picketers' belief that the second employer had directly acted to frustrate the strike or industrial action. It would not be sufficient for the picketers to rely on a sincerely held personal belief that the employer was acting thus; they would have to show good cause for that belief.
The subsection provides additional safeguards in that picketing must be in contemplation or furtherance of a trade dispute and must be peaceful. Intimidation, breach of the peace, obstruction, trespass, riot and so on would continue to be illegal in the case of secondary picketing as in all picketing. In addition, sections 14 to 19 will apply to secondary picketing so that a dispute undertaken without a ballot and a majority in favour will not give rise to lawful secondary picketing. Also, the second employer will be entitled to a week's notice of the picketing. If this is not forthcoming the second employer will be entitled to seek an injunction against the secondary picketers.
If secondary picketing was outlawed completely employers would have wide scope to circumvent the effects of legitimate industrial action. While employers have a right to make every effort to circumvent the effects of a strike directed against them in a democratic society this cannot be an absolute right and must be balanced by the right of workers to bring  economic pressure to bear to further their legitimate claims. Under the subsection only employers who directly involve themselves in the dispute by acting to frustrate the strike will be subject to secondary picketing. In addition, if secondary picketing was outlawed there would be a problem of enforcement with the possibility of creating martyrs. I do not seek to get involved in that.
As Deputies have stated, picketing is a controversial and emotive issue. We spent a great deal of time discussing this issue when preparing the Bill. There has been much pressure on me from the employer side quoting reasonable arguments, from their point of view, to outlaw such picketing completely but, as I have indicated on many occasions, that would be going too far. In fact, that was the main source of employers' lobby and pressure in regard to the Bill and before proposals were circulated to outlaw secondary picketing. Members, particularly those who have experience of these issues, are aware of the depth of feeling there is among employers about this. I have taken the middle ground and set down what I believe to be a fair approach to secondary picketing and that is that it should be permissible where it is reasonable for those workers picketing to believe that the second employer was acting in a way calculated to frustrate the strike by assisting their employer directly.
Were I to accept the amendments proposed I would be loosening up this and moving away from the objective test of having a reasonable belief and a concept of direct assistance which are central to the proposal to regulate secondary picketing in a balanced way. I apologise for taking so much time on this issue but I was anxious to deal with the section which is central to the Bill. We have spent a considerable amount of time seeking a balance in the section. In my view we have found the correct balance, one which, perhaps, neither side will love but  it can function and undertake the task I have mentioned.
Mr. Rabbitte: I do not think, almost 12 hours after we started the debate on the Bill, that there is any point in spoiling the ship for a hap'orth of tar. As the Minister has admitted, this section is the nub of the Bill. Certainly, it is the centre-piece of the employers' lobby and it deserves to be teased out. The employers' lobby on this, I am saying quite calmly, has largely succeeded. The Congress of Trade Unions are aware of that and the trade union movement generally will become more aware of it if it is enacted in its present form. The employers' lobby have effectively got what they wanted because it does not take any great ingenuity to circumvent a dispute if the section is enshrined in the law.
I do not wish to talk about this all night and, important and all as I think enshrining the subjective, as distinct from the objective, text of what may be in the minds of the people attending at the place of the second employment in the Bill is, I am prepared to trade that with the Minister in return for him accepting amendment No. 27. In my view that is the most important amendment that could be advanced. I should like to explain to my colleagues in Opposition why I say that. We are talking about a section which will make it lawful for a person or persons to picket the place of an employer other than the employer with whom they are in dispute because they have a reasonable belief that he is acting in a manner to undermine the effectiveness of their strike. It will be a lawyers' paradise if it remains as it is at present. Whatever is in the minds of the people who came to picket, to be able to prove in certain cases that the employer took this action in a calculated way will be virtually impossible. Most importantly, it does not cover a whole range of situations. There is a requirement that he must be seen to be directly assisting the other employer, he  may be doing no such thing but it could still have the effect of undermining the dispute. I cannot claim the credit for the drafting but it is expertly done and it purports to replace that phrase by the following one: “that the employer ... in such manner as to have the effect of frustrating the strike by either directly or indirectly ...”.
What possible objections has the Minister to that wording? He said on the one hand he has refused to abolish secondary picketing in this country as has effectively happened in Britain but, on the other hand, he will not accept an amendment which says that secondary picketing may continue but in very restricted terms. My amendment is very restrictive; you would have to be able to prove that the secondary employer had the effect of undermining the strike and directly or indirectly assisting the first employer. They are very onerous criteria to meet. It is far more restrictive than the present situation. If this section was enacted with my amendment it would be far more restrictive than anything on the Statute Book at present. It would provide for secondary picketing but in a very controlled and restricted way. Any persons leaving the picket line of the first employer would have to be satisfied that the secondary employer had the effect of damaging their strike and that he was doing so and assisting the first employer. That is very restrictive and I plead with the Minister to take its sense on board because, otherwise, this will be an employer's Bill. Will the Minister at least acknowledge that it is lacking in balance? I know he spent the past two days in Killarney and I know what that can do to the most resolute person.
Mr. Bell: I join Deputy Rabbitte in appealing to the Minister to take a very serious look at this. The section was drafted to protect employers' interests and there is no doubt that the Bill will not work if that is not altered. A company could be manufacturing the same product in two different locations in a town or city and if there is a picket on one factory management could switch production to the other company leaving the workers to picket an empty building. As things stand they could not place a picket on the other company although they could be manufacturing exactly the same product. The strike would be killed.
Another point is that people from a separate company could legally and properly go into a factory which was being picketed to collect machinery and so on and if the company was picketed the picketers would be in breach of the law although the other company would be breaking the strike. It is a long time since 1906 but if the Bill is enacted in its present form the situation will be even worse than it was under the old Act. I am sure Congress made a substantial submission to the Minister in regard to this Bill and that they conveyed their worries about  this section. I am sure the Minister's colleague sitting behind him who has handled industrial relations in UCD agrees with Deputy Rabbitte and me that if the wording is not altered it will be unsatisfactory.
I have no objection to amendment No. 27 because it is very close in many respects to amendment No. 28. They would both be effective. I could spend the next hour outlining circumstances in which this will not work and it will mean that every employer and trade union will spend half their time in the court. If the Minister does not alter it there will be unofficial disputes and the substantial reduction in the number of strikes will not be maintained. Trade unions and employees in a trade dispute will be frustrated, there is no doubt about that.
Mr. B. Ahern: There must be a real and concrete test of the circumstances in which secondary picketing can be allowed and we have outlined those circumstances. Deputy Rabbitte said his amendment is well drafted, I am not arguing about that and I accept he is not claiming credit for it. However, it does not achieve the balance required in this matter. I do not want to repeat all the arguments but that is our view. The tightening of case law was leading us down that road before we drafted the amendment and the employers are not happy because not banning secondary picketing is disastrous from their point of view. I am clear that to do that would tilt the balance one way and to change the section might tilt it the other way. We are trying to find an area in the middle and, following much discussion, this is what we have done.
I am obliged to listen to the points made by the Deputies. I have listened to the arguments put forward by them and by the legal side on this issue. I have legal submissions on this aspect which go both ways and refer to all the difficulties which can arise. The parliamentary draftsman put a lot of time into this section and  understood what I was trying to do. I do not propose to be either the parliamentary draftsman or a legal expert but having listened to the arguments put forward on both sides I believe, and I am sure Deputy Rabbitte will agree with me, that this is the best balance possible. I think Deputy Rabbitte will accept that the people who drafted this amendment were not working from a middle of the road position. I am not being critical of them in any way.
Mr. B. Ahern: I have to say that I received submissions which went the other way also. I tried to find a middle of the road balance which would stand the test of time. I will be reflecting on the points made by the Deputies but this is a fundamental and important section and to tilt the balance either way could give rise to all kinds of difficulties at all levels. I have to be honest and straight about this issue rather than taking up other stances and putting forward different arguments. I am convinced that this is a middle of the road solution. If we were dealing with a different kind of Bill perhaps I would do other things.
Mr. J. Mitchell: The Minister was right to resist the somewhat hysterical demands of some employers for an all out ban on picketing. He was also right to resist the amendments proposed by Deputy Bell and Deputy Rabbitte. I have considered this matter very carefully and I believe the Minister has got the right balance in this section. I wish I was as happy about other sections.
Deputy Bell's concerns have been exaggerated. I have the greatest respect for Deputy Bell, who is a man of considerable judgment, but I have to disagree with him on this occasion. I intend to support the Minister. I do not follow the amendment in Deputy O'Sullivan's name — it is getting late and perhaps  I am tired — whereas the intention of Deputy Rabbitte's amendment is clear. This is a matter of judgment and balance, and I agree with the Minister on this occasion.
Mr. Rabbitte: I suppose, to coin a phrase, one could say that Deputy Bell and myself are representing the SIPTU tendency here but I do not think this would make our arguments any less valid. I cannot understand how the Minister and Deputy Mitchell think the balance is just right. After all, we all recognise that this provision is far more restrictive than the one which obtains at present. If my amendment is accepted, secondary picketing would be acceptable but greatly constrained and limited by the condition which is the essence of my amendment. I cannot follow how it would tilt the balance because the criteria set down in my amendment are very onerous.
This is the reason — Deputy Bell reminded me of this when he was referring to the later amendment in Deputy O'Sullivan's name — I toyed with the idea of just proposing the deletion of the phrase concerned. I also toyed with the phrase “directly or indirectly assisting their employer, etc.”. However, I felt that if I was to have a realistic chance in this House of convincing the Minister to take this point on board, it would be better not to propose the deletion of certain words but to propose an amendment which would impose serious restrictions on where and how secondary picketing might take place. I appreciate that it is very late but, as Deputy Bell has said, this section goes to the very heart of what we are talking about. I agree with him that it will be employer's legislation if it goes through, and I do not believe this is the intention of the Minister.
It is completely unreasonable, in a world of multinational companies and multicompanies within a particular holding group, to say that workers may picket at the primary site or location — we had all the discussions about where exactly  they should picket at the place of employment, etc. — and restrict them, as is intended. If, as Deputy Bell said, an associate company within a group, takes over the production of some other aspect, especially in an era of electronic media, telecommunications, and so on, they will have absolutely no difficulty in contriving to undermine a strike and will be able to carry out the work with minimal damage. Incidentally, this is the point I was making in regard to Deputy Mitchell's amendment this morning when he spoke about having to show that substantial damage or industrial disruption would be caused.
Mr. Rabbitte: Very little disruption may be caused because a group of companies could so order their affairs that the strikers would be entirely impotent and could not so picket. This would happen without referring at all to the situation I used as shorthand for a whole lot of disputes of this kind, for example the UCD cleaning dispute.
In the case of the UCD cleaning dispute a contractor took over the contract and the cleaning women prosecuted a trade dispute against the new employer for employment. I do not understand how they could do that in the circumstances envisaged here? As I have said, the Minister should give us an undertaking in this regard. Amendment No. 26 is important but in the interests of saving time I will be happy to withdraw it. However, I am anxious that the Minister will take the essence of amendment No. 27 on board. If he can come up with an amendment which is better drafted than amendment No. 27, which I doubt, then I ask him to do so. Otherwise, there will be serious disenchantment in the trade union movement about this section. As Deputy Bell has said, the important point at the end of the day is that it will be inoperable because of the restrictions envisaged here. This section takes no account of the  structures of industry today, no account of the phenomenon about which Deputy Bell spoke, of a company, for example, Burlington Industries, that had at least four major plants in this country at one stage. Therefore, if there was a strike in the Kerry plant of Burlington Industries one could conceive of circumstances in which production would be moved or divided between the remaining three plants and the lads in Kerry would be left picketing until kingdom come — if the House will forgive the pun — and could do nothing about it.
Mr. Bell: I might reiterate for the benefit of the Minister the serious worries we have about this. An employer's representative here might contend that the Bill, if amended, would appear to be a trade union Bill. There is not a lot wrong with the position as it stands but this will render it a hell of a lot worse. All it will do is create problems for the Department of Labour who will be very busy if this section, as drafted, is passed. Whatever the wording that must be found I appeal earnestly to the Minister to seriously re-examine this and to have further serious consultations before this Bill is passed. I predict that if it is passed as drafted, employer organisations, employers in general, companies — particularly those with the largest manpower, expertise, legal back-up and so on — will draw horses and carts through it, and that section in particular. That section constitutes the meat of this Bill; that section is what this Bill is all about.
In the building industry there is the widespread practice of employers who do not pay the rate laid down by the joint labour committee or under the registered agreement for the industry. Unions are obliged to take on cowboy employers in an endeavour to force them to pay the correct rates. In fact, they are obliged to undertake the work which should be undertaken by the Department in following up employers, forcing these cowboys to pay the correct rates and apply  the correct conditions of employment. That is the position. How does one deal with it? In many cases the Department cannot deal with it. As my colleague, Deputy Rabbitte will well know, sometimes it takes two years to have a case considered by a joint labour committee, or to reach a registered agreement for the industry. By that time the relevant employer may be closing one site, opening another, or moving from one subcontracting site or location to another. The only way trade unions can follow that up to ensure that such people apply correct rates of pay is through the traditional trade union means. On the basis of what is contained in that section, such action would be rendered illegal. It would not be possible for a trade union to operate effectively, say, within the building industry, for a start, because they would be totally immobilised.
As I have said at the outset, because of the overall change in subcontracting arrangements in the building and transport industries every manufacturing company now will have hived off its transport and services people and they no longer employ electricians, or provide all sorts of services formerly provided within the industry. There has been this astronomical development of subcontracting work within industry and the services. Unless the trade unions are allowed to operate in circumstances in which they can take the necessary industrial action against an employer who — whether he be a subcontractor or any other type of employer — actually frustrates and defeats a dispute, by providing the requisite service, transport or whatever the position will not be redressed. On the basis of the provisions of this section all of that activity would be deemed to be illegal. The only people who will gain anything from it will be the legal profession. As I have already said, the one profession we do not want to bring into industry and strikes is the legal profession  because they will be the only people who will win.
Mr. J. Mitchell: The point made by Deputy Bell about this flight out of business into subcontracting and so on — something we discussed and tried to provide for earlier in the day — is something about which all sides of the House should be concerned. It was partly addressed, in a related way, by The Workers' Party Private Members' Bill on part-time work — the resorting to ruses to avoid the obligations of social legislation whether that be social insurance, income tax, conditions in terms of employment, unfair dismissals or whatever. We must ask ourselves why industry is doing that.
Employment generally and the effect of the aggregation of legislation on employment have not received sufficient mention. Sometimes it is my opinion that the trade union point of view is shortsighted; at times, to some extent, it takes a tribal attitude to what sounds right in its cause but which in fact can be very damaging to its cause. If we could put the clock back, say, ten or 15 years then, from a trade union point of view, we might well think differently. I say that as somebody who is very committed to the rights and strength of trade unions. The greatest undermining of their strength is unemployment. Yet it can be contended that the unintended effect of much of what we have passed here in recent years has caused unemployment.
At the same time that has been facilitated by the fact that one can employ people for fewer than 18 hours and get away without honouring certain social commitments. One can opt for the ruse of employing people under contract for the very same work in which they were engaged as employees. But now one is not responsible for their taxes, social insurance and so on, when the employee does not have rights under the Unfair Dismissals Act and so on. It is a point that has not received sufficient consideration as yet within the trade union  movement although I must say that the development of thinking within that movement and the general concern for the national interest have been more evident there than on the part of any other major industry in this country for a long time. That deserves to be said.
Mr. Rabbitte: If Deputy Mitchell believes—and I accept that he does, and thank him for his support on our Private Members' Bill to which he referred — that this subcontracting phenomenon is something about which we all ought to be worried and address, then I suggest that he look again at the amendments I am advancing here. How can one possibly provide for circumstances in which, for example, a different contract catering company comes into this House, makes a better tender, under-cuts J. D. Carroll, who is here already, and takes over the catering service in this House? If that company decide not to employ any of the workers who have been doing the job for many years, there is no conceivable way such employees could prosecute a trade dispute under the provisions of this section. One could not prove that they are directly assisting the first employer because they are manifestly not directly assisting the first employer. The only reason the new catering company came in here was to get the business for themselves.
Mr. J. Mitchell: If I may interrupt the Deputy, I had an earlier amendment which said: “or who had been the employer at the commencement”. Therefore, if there was a change or takeover I specifically raised that point as a means of dealing with that contingency.
Mr. Rabbitte: It would not permit one prosecuting a dispute against, say, Campbells Catering, the new company, because then the only people who may picket here are those who have a reasonable belief that the new employer, Campbells Catering, acted in a manner  calculated to undermine their strike by directly assisting the primary employer. They are not there to directly assist the primary employer, quite the opposite; they are there to take away his business. Therefore, the contract workers who lost their jobs may not picket.
The entire phenomenon Deputy Mitchell has identified is not provided for in section 11 (2). It is one pressing, additional reason the Minister should indicate that he will take on board, if not the actual amendment, then its essence. I might emphasise — as has Deputy Bell — that this is really what this Bill is all about.
This was the third attempt, and not mine, at drafting an amendment. It is a very carefully drafted amendment and if Deputy Mitchell examines it carefully he will note it is quite restrictive. The Minister has available to him advisers as expert as my own, including Deputy Hillery on the Government backbenches, who I am sure would be prepared in private to offer him a view that the argument being made, especially by Deputy Bell and I, is well founded and that the trade union movement will, as I said earlier, rue the day they did not press the Minister more aggressively, although I am well aware they have made submissions and met with him when they begged him to change this. I am sure the Minister is aware of the very strong feeling on this matter. As this issue is so important and goes to the very heart of what we are talking about, it is important that he gives us an undertaking to take it on board.
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